Masters Degrees (Public Law)

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    The legitimacy of the African Court on Human and Peoples’ Rights after the withdrawal of Rwanda, Tanzania, Benin, and Côte d’Ivoire from Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
    (Stellenbosch : Stellenbosch University, 2023-12) De Klerk, Derick Ras; Rudman, Annika; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : The African continent is plagued by systemic human rights violations. These violations are often perpetrated by states against marginalised communities such as ethnic, sexual and gender minorities. Victims of human rights violations must, as a principle of international law, exhaust domestic remedies before they approach international human rights courts. However, access to justice and to an appropriate remedy under domestic law is far from the norm for African victims of human rights violations. As such, it is vitally important that Africa has a strong regional human rights system. With the adoption of the African Charter on human and Peoples’ Rights and the establishment of the African Commission of Human and Peoples’ Rights (“African Commission”) and the African Court on Human and Peoples' Rights (“African Court”), victims have been empowered to seek redress at a regional level. However, the African Commission is not empowered to deliver binding judgments, and the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (“Court Protocol”) does not afford individuals an automatic right to directly petition the African Court. Individuals may only petition the African Court directly on condition that the respondent state has made an optional declaration in terms of Article 34(6) of the Court Protocol. States have never petitioned the African Court and the African Commission has only done so on three occasions. As such, the African Court relies on the petitions of individuals to receive new applications and develop its jurisprudence. The inclusion of Article 34(6) has, thus, raised debates amongst the Justices of the African Court and academics alike, with some arguing that its inclusion poses a risk to the African Court’s legitimacy as a human rights protector. In 2016, Rwanda withdrew its optional declaration under Article 34(6), followed by Tanzania, Benin and Côte d’Ivoire, limiting potential applications to the African Court even further. This thesis assesses the legitimacy of the African Court after these withdrawals. Theoretical considerations of state sovereignty, the right of access to regional justice and the principle of complementarity underpins the research. Furthermore, the theoretical framework developed by Madsen et al. with regard to state resistance to international courts is applied to further analyse the withdrawals. Ultimately, this thesis seeks to provide an evaluation of the contemporary legitimacy of the African Court insofar as it relates to its ability to adequately fulfil its human rights protective mandate.
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    A legal review of the World Trade Organisation’s applications of the Agreement on Trade-Related Aspects of Intellectual Property Rights to ensure equitable access to health care during the COVID-19 pandemic
    (Stellenbosch : Stellenbosch University, 2023-12) Carstens, Jan Paul; Ruppel, Oliver C.; Ruppel, Oliver Christian, 1969-; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : No abstract available.
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    Restoring justice : examining the use of restorative justice sentencing practices in cases of gender-based violence offences
    (Stellenbosch : Stellenbosch University, 2023-03) Sydenham, Sarah; Madonsela, Thuli; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH SUMMARY : Gender-based violence (“GBV”) has reached pandemic proportions in South Africa and poses a direct threat to the human rights of every individual it impacts.1 This thesis sets out the potential restorative justice has to restore the human dignity of GBV survivors. The restoration of human dignity in response to crime is shown in this thesis to be an integral part of the transformative constitutional vision. This thesis explores the potential restorative justice has to restore the human dignity of GBV survivors in court. This thesis outlines the theory of restorative justice as conceptualised in Western academic literature as well as in traditional African legal culture. The link between restorative justice and the value of ubuntu is explored and an understanding of restorative justice theory grounded in the value of ubuntu is established. Some of the strongest challenges to the use of restorative justice in cases of GBV come from certain feminist legal theorists. These challenges must be explored to enable an application of restorative justice which is sensitive to the context of GBV. The approaches of various strands of feminist legal theory are examined to find a lens which is able to guide the application of an ubuntu-based restorative justice approach to cases of GBV. The theoretical framework of this thesis consists of an ubuntu-based approach to restorative justice, guided by an intersectional and ubuntu feminist lens. This theoretical framework is then used to analyse restorative justice jurisprudence to establish whether courts have taken an adequately victim-centric approach in the cases identified. The analysis determines whether the courts can restore the complainants’ human dignity in each of the cases by awarding them both material and symbolic restitution. This thesis works from the hypothesis that courts have not adequately centred victims of crime, particularly GBV survivors, in the application of restorative justice. The Constitutional Court and Supreme Court of Appeal have held that the crime of rape degrades the rights of victims, particularly the right to human dignity, and that courts have a duty to protect these rights.2 This thesis investigates the extent to which courts have actively prioritised the restoration of the complainant’s human dignity when applying restorative justice in sentencing practices. Restorative justice cases have been identified as worthy of investigation because of the way victims and their restitution are centred under a restorative paradigm. This thesis finds that courts have not adequately centred complainants and their restitution when applying restorative justice in cases of GBV.
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    An analysis of the Separation of Powers Doctrine in Housing Rights Remedies Jurisprudence
    (Stellenbosch : Stellenbosch University, 2022-03) Weideman, Andrea Joy; Slade, Bradley V.; Kok, Anton; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: The remedy issued by the Constitutional Court in Government of the Republic of South Africa and Others v Grootboom and Others 2000 11 BCLR 1169 (CC), has been criticized for being overly deferential. In spite of the courts’ wide remedial powers, it made an order lacking specificity about the measures required to remedy the housing rights infringement in that case, overly deferring its remedial role to the executive and legislative branches of government. The basis of the court’s overly deferential approach was the separation of powers doctrine. Therefore, the question that this study aims to address is how the separation of powers doctrine impacts on the courts’ provision of remedies in South African housing rights remedies jurisprudence. To answer this question, this study contains an analysis of the separation of powers doctrine in the abstract and as understood in the South African context, as well as an analysis of the remedies issued by the courts in housing rights cases, with a specific focus on the remedies issued by the Constitutional Court (hereafter “the Court”). This study attempts to illustrate that the foundation for the Court’s strict understanding of the separation of powers doctrine was laid during the debate about the inclusion of socio-economic rights in the 1996 Constitution. During this debate, separation of powers concerns, judicial capacity, and judicial legitimacy, were raised by those against the inclusion of socio-economic rights in the 1996 Constitution. In this study it was found that the same separation of powers concerns raised during this debate are ritually invoked by the Court in housing rights cases during the remedy stage of adjudication. It is against this backdrop that the Court has traditionally adopted a deferential approach in relation to the provision of remedies in housing rights cases. However, despite the implications of the Court’s traditionally deferential approach, the Court post-Grootboom has shifted away from this approach. While the Court’s postGrootboom approach was necessary considering the failed interaction between a deferential Court and an incompetent government, and its implication for the victims of housing rights violations, it potentially raises separation of powers concerns. Despite these separation of powers concerns, it is argued in this thesis that the Court’s post-Grootboom approach is justified on the basis of a more contemporary understanding of the separation of powers doctrine. While the Court’s post-Grootboom approach was a step in the right direction, the transformative — coupled with the supreme — nature of the 1996 Constitution requires something more, a reconceptualization of the separation of powers doctrine. The reconceptualised doctrine that I have in mind encapsulates a separation of powers that is understood and applied by the Court with the achievement of the transformative aims of the 1996 Constitution in mind.
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    Community-based mental health care for adults with psychosocial disabilities in South Africa through a right to health lens
    (Stellenbosch : Stellenbosch University, 2022-03) Booyens, Marietjie; Liebenberg, Sandra; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT: There has been a shift, globally, from institutionalisation as the primary response to psychosocial disability, to community-based mental health care. This thesis sets out to determine the extent to which the legal and policy frameworks which govern community-based mental health care for adult persons with psychosocial disabilities in South Africa comply with constitutional and international law standards relevant to the right to health. First, by analysing the right of access to health care services in section 27 of the South African Constitution, relevant normative standards for community-based mental health care are established. Further, the negative and positive constitutional obligations in respect of the right of access to health care services are discussed. Following the analysis of constitutional norms and obligations, four key regional and international human rights instruments are analysed, with the right to health as the primary lens. A key part of this analysis is the consideration of two frameworks: the normative standards of “availability”, “accessibility”, “acceptability”, and “quality”; and the obligations to “respect”, “protect” and “fulfil”. These constitutional and international law standards are then applied to evaluate the mental health care legislation, policy and practice relevant to community-based mental health care – specifically, the Mental Health Care Act 17 of 2002, the National Mental Health Policy Framework and Strategic Plan 2013-2020, and the White Paper on the Rights of Persons with Disabilities of 2016. On the basis of this evaluation, this thesis finds that the framework does generally align with the constitutional and international law standards. However, the translation of this framework into practice is deficient in a number of ways. These deficiencies include: the absence of effective monitoring and information systems; insufficient resource allocation; the inequitable distribution of goods, facilities and services; a lack of clarity on the applicable standards for quality, ethical care; and poorly functioning oversight and accountability mechanisms. Consequently, this thesis concludes by making recommendations to improve the alignment of South Africa’s system of community-based mental health care with constitutional and international law standards.